Skepticism aired of courts’ role in deciding issue

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CINCINNATI — The steady march of judicial approval for same-sex marriage over the past year ran into some skepticism Wednesday as a three-judge federal appeals panel heard arguments in six same-sex marriage cases from four states.

In three hours of back-and-forth questioning, it appeared that neither side could take victory for granted in the Sixth US Circuit Court of Appeals, where the cases from Kentucky, Michigan, Ohio, and Tennessee were heard by two judges appointed by President George W. Bush and one by President Bill Clinton.

Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

“I’d have thought the best way to get respect and dignity is through the democratic process,” he said, expressing a view that, in practice, would most likely deliver a victory to the states seeking to keep bans on same-sex marriage.

As they debated the cases, all three judges and several lawyers referred repeatedly to the transformed legal landscape of the past year, in which more than two dozen lower courts and two appeals courts have ruled that gay couples have a right to marry, and to the expectation that the Supreme Court would soon hear the issue.

Sutton did suggest that the arguments offered against marriage equality were weak, saying that marriage bans would be hard to defend if subjected to the intense “heightened scrutiny” that courts apply when fundamental civil rights are at stake. But he also wondered whether legal precedents in the Sixth Circuit and the Supreme Court should prevent the panel from declaring same-sex marriage to be a fundamental right deserving court intervention.

In often caustic questions, Judge Martha Craig Daughtrey, the Clinton appointee, left no doubt where she stood. When the lawyer for Michigan said that the courts should not tamper with an institution as deeply rooted as marriage, she replied that bans on interracial marriage were also deeply rooted before the Supreme Court found them unconstitutional.

“That was the law across a huge swath of the Southern states,” she said.

The third judge, Deborah L. Cook, another Bush appointee, spoke little during the unusual proceeding in which one state’s case followed another without any breaks. But she seemed to favor the right of states to ban same-sex marriage.

If this court were to rule against same-sex marriage, it would create more pressure on the high court to rule on the issue to clear up the conflicting rulings among appeals courts.

The blitz of hearings here “is a result of the avalanche of federal court decisions on marriage in the last year, all of them ruling the same way,” said Susan Sommer, director of constitutional litigation for Lambda Legal, which helped to represent gay couples from Ohio who asked the state to recognize their marriages from other states and to put both parents’ names on birth certificates.

Offering poignant props to the argument, three lesbian couples in the case, each with a newborn baby, sat in the gallery for much of the afternoon, their infants alternately cooing and feeding on bottles.

Kentucky and Michigan asked the appeals panel to reverse district court rulings striking down their bans on same-sex marriage, which were adopted by voters a decade ago. Ohio and Tennessee asked the panel to overrule decisions mandating them to recognize gay marriages performed in other states.

A core issue, lawyers representing the states said again and again, was whether the federal courts had a right to overrule the will of the people.

“Who gets to decide what the definition of marriage is?” asked Aaron D. Lindstrom, solicitor general of Michigan.

A second crucial issue in Wednesday’s hearings and in courts across the country is whether same-sex marriage is simply an expansion of a well-established fundamental right to marry reflecting shifting social norms, and thus worthy of constitutional protection, or whether gay couples “seek recognition of a new right,” as Kentucky argued.

The hearing was the third time this year that a US circuit court, the last stage of appeal below the Supreme Court, has considered whether gay couples had a constitutional right to marry. A score of lower courts have overturned state restrictions in the year since the Supreme Court overturned part of the federal Defense of Marriage Act, saying it stigmatized gay families.

The 10th Circuit, in Denver, declared gay marriage bans in Utah and Oklahoma to be unconstitutional, and the Fourth Circuit, in Richmond, overturned Virginia’s ban. But implementation has been stayed pending appeals to the Supreme Court.

This week, Utah and a county clerk in Oklahoma petitioned the Supreme Court for a hearing. More such appeals are expected, and many specialists predict that the Supreme Court will accept one or more of these appeals this fall.